Fracking rules advance as environmentalists cry ‘foul’
A panel of state lawmakers approved controversial regulations for high-volume hydraulic fracturing on Nov. 6, prompting environmental groups to level allegations of secrecy and undue influence by oil and gas interests. One environmental group has filed a lawsuit to challenge the rules, claiming the state didn’t follow its own rulemaking procedure.
The rules come after years of tension between environmental groups and oil and gas companies, both vying to control how strictly the regulations were written. Environmental groups in southern Illinois say the process could destroy the land, while oil and gas companies say allowing “fracking” – as it’s commonly called – will bring needed jobs and revenue to Illinois.
The Joint Commission on Administrative Rules, a 12-member panel of state lawmakers, approved fracking regulations on Nov. 6, essentially starting the implementation of a law passed in June 2013. The finalized rules have not been publicly released and are expected to be printed later this month in the Illinois Register, the state publication listing all administrative rules.
Barbara Heyl, a spokeswoman for the anti-fracking group Illinois People’s Action, believes oil and gas interests were given special access to craft the finalized rules. Heyl cites a press release in which Brad Richards, vice president for the Illinois Oil and Gas Association, applauds JCAR “for producing carefully crafted rules that resemble the legislation that was signed into law.”
“That indicates to me that they have seen the final draft rules, but not the public,” Heyl said. “This isn’t a good sign. … They made the decision behind closed doors and didn’t release the rules. Why are they hiding them?”
Mark Denzler, vice president of the Illinois Manufacturers’ Association and chairman of the pro-fracking GROW-Illinois coalition, says that while JCAR did consult with both sides of the fracking debate, he doesn’t know what’s in the finalized rules any more than fracking opponents do.
JCAR’s ruling is not a surprise; the panel had to act by Nov. 15 or the rule making process would have had to start from scratch. There was little expectation that the rules would be scuttled, especially considering the political risk fellow lawmakers like Rep. John Bradley, D-Marion, took while crafting the fracking law.
Still, JCAR’s decision not to allow the public to attend the meeting or accept public testimony prompted some environmentalists to claim lawmakers had been bought by the oil and gas industry. Several members of JCAR have accepted campaign contributions from companies in the oil and gas industry, according to records from the Illinois State Board of Elections.
“It’s one more example of disenfranchising citizens,” said Bill Rau, environmental justice leader for Illinois People’s Action. Rau says members of JCAR have taken more than $600,000 in campaign donations from companies and groups related to fracking.
“These guys are interested in building their war chests for the next election,” Rau said. “They’re not concerned about their grandchildren.”
Sen. Don Harmon, D-Oak Park, disputed the claim.
"It's insulting, and it's not true," Harmon said.
Harmon said that after DNR's first draft of the rules was released, JCAR members asked the agency to make the rules more strict. DNR's second draft, however, seemed to diverge too far from the law it was based on, Harmon said. JCAR then acted as a go-between, trying to reach an agreement between the industry and the environmental groups that were originally involved in negotiations.
"I understand peoples' frustration, but there was nothing sinister about it," he said.
Fracking involves pumping millions of gallons of water, chemicals and sand deep underground to fracture shale rock formations and free trapped deposits of oil and natural gas. Oil and gas companies have already secured leases to frack wells in southern Illinois, which is expected to become a hotspot for oil and natural gas exploration because of the New Albany Shale formation.
Although fracking was technically not forbidden before, companies were reluctant to do it without a regulatory structure. Environmental groups have fought desperately to keep fracking regulations from being approved, staging protests, sit-ins and letter-writing campaigns to lawmakers. The groups raised concerns about issues like forced pooling, in which a landowner can be forced to allow drilling beneath their land because neighbors have leased their land to be fracked.
Fracking has proven controversial even within the environmental community, with some groups like the Illinois Sierra Club opting to negotiate with the oil and gas industry for regulations. However, several groups in southern Illinois saw the negotiations as Chicago-based groups speaking for their interests without their input or permission.
Mark Denzler says the GROW-Illinois coalition had serious concerns about the proposed rules after the Illinois Department of Natural Resources revised them following a public comment period. Denzler says DNR’s most recent proposal changed a setback requirement for wells from the 1,500 feet specified in the law to either 1,500 feet or another distance the director of DNR specifies, which could be more or less than what the law prescribes. Another issue Denzler cites is who should be allowed to weigh in during the public comment period for each fracking permit DNR issues.
“If you live in southern Illinois or own farmland or a house or have some other economic interest, you should be able to comment,” Denzler said. “But if you’re 40 years old living in your mother’s basement 2,000 miles away, you shouldn’t be allowed to flood the hearing with comments.”
Denzler calls Illinois’ regulations “the strictest in the nation, bar none.” He says fracking companies will be presumed guilty of any contamination that occurs unless they can prove they’re not responsible, which he notes essentially flips the presumption of innocence that characterizes the U.S. legal system. He also says fracking companies have voluntarily agreed to cap any old wells near fracking sites, among other concessions.
“Sometimes you’d find old wells plugged with just rags or dirt,” he said.
While it remains to be seen how widespread fracking will be in Illinois and whether any pollution will occur as a result, Denzler says negotiators here had the luxury of looking at existing regulations and outcomes in other states.
“We had three years of negotiations and reached an agreement with the mainstream environmental groups,” he said. “We want to protect the water, the ground and the air while allowing the industry to develop.”
The anti-fracking group SAFE (Southern Illinoisans Against Fracturing our Environment) filed a lawsuit on Nov. 11 challenging the rules in Madison County Circuit Court. The lawsuit, which also includes seven southern Illinois residents as plaintiffs, claims DNR did not follow the state rulemaking procedure in several ways, like failing to consider scientific studies while drafting the rules.
“Those opposed to fracking in Illinois have pushed the importance of scientific studies related to fracking since the beginning,” said Natalie Laczek, a Chicago-based attorney representing the plaintiffs. “This form of fracking is highly controversial and there are many dangers involved. IDNR should have considered the science from the beginning of this process as required under the law.”
Contact Patrick Yeagle at email@example.com.